EDITOR’S NOTE: This op/ed was published on Loudon Now December 19, 2024, and recommended to Pioneer readers by Jim Heffernan.
By Ben Lenhart
On Jan. 20, 2025, President-elect Trump will be sworn in as the 47th president. He has announced plans to take many actions during his first days in office, including deporting undocumented immigrants, imposing tariffs, and firing federal workers (just to name a few). How do his plans stack up against the Constitution? What powers does the Constitution give the president, and what powers does it withhold? Can the president do that?
History Helps Answer the Question. The patriots fought the America Revolution for many reasons, not least of which was an intense desire to escape the rule of a powerful king—George III. The Declaration of Independence lays out King George’s grave abuses of the American colonies. During the Revolution, many Americans were so opposed to the idea of a king that they refused to include a true president in the government created in 1781 under our first constitution —the Articles of Confederation. However, our new nation quickly suffered under the Articles, and in just five years it became apparent that a government without a president was insufficient for the needs of the new and growing America. Many argued that a strong American president was needed to “take the reins of government” and help lead the country forward.
Balancing the President’s Power. With these opposing forces in mind, the Founding Fathers faced a delicate balancing act when they met in the summer of 1787 in Philadelphia. On one hand, most everyone despised the idea of a king or any similar autocrat who would threaten American’s hard- won freedoms. On the other hand, with the fresh failure of the “no president” approach under the Articles of Confederation, most realized that America needed a strong leader. The Founding Fathers struck this balance in two ways. First they gave the president several vast and important powers such as the commander-in-chief power and the power to execute the laws. But equally important, they denied him many other powers. For example, the president is not given the power to make laws, declare war, raise taxes, or resolve constitutional disputes. Second, while the left hand of the Constitution gives several huge powers to the president, the right hand checks and balances those powers—the president can veto laws, but Congress can overrule; the president is elected but limited to a four-year term; the president is vested with executive power, but Congress can impeach him. While the balance forged by the Founders is not perfect, it has worked well: America has endured 235 years under our Constitution with no revolution, no dictator, and no return of a king (few nations can make this boast).
Six Powers. While some may count differently, the Constitution can be said to give the president six (and only six) powers, and all of these are found in Article 2. While granting these six powers, the Constitution also includes the 10thAmendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, if the Constitution does not give a particular power to the president (or to one of the other two branches of the federal government) that power stays with the state governments, whose powers to govern are in many ways far broader than those of the federal government.
Power #1: “Take Care” Clauses. Article 2, Section 3 states that the president shall “take care that the laws shall be faithfully executed.” This is arguably the president’s most important power. It falls to the president—and the millions of people under the president who make up the federal executive branch—to enforce thousands of federal laws. The vastness of this power lies in the discretion given the president to decide just how to enforce the laws. When enforcing federal voting laws, should the president focus on voter access or voter fraud? When enforcing environmental laws, should he focus on clean air and water or on cutting environmental “red tape” to help business? When enforcing immigration laws, should he focus on immigrant services or border enforcement and deportations? Each of these presidential choices may be entirely valid and legal—because laws passed by Congress often leave lots of wiggle room—but each lead to very different outcomes for America. This vast power is “checked” in many ways, particularly by the word “faithfully.” The president can’t just carry out a law in any way that he likes. He has to do it a way that is faithful to the law passed by Congress. The courts have struck down presidential actions hundreds of times on the basis that the action was not consistent with the law passed by Congress (see examples below).
Power #2: War. The president is Commander in Chief of the armed forces, but only Congress can declare war. Congress also controls the purse strings to fund (or defund) the military. In theory, the Constitution carefully balances war powers between the president and Congress. In practice, however, war power has tilted strongly toward the president. American presidents have deployed military forces well over 100 times, and yet Congress has declared war less than a dozen times, the last time being World War II. (Congress can also pass resolutions on the use of force). In short, the president has been far more willing than Congress to use war powers and “take the political heat” on war-making. It is said that power belongs to those who use it, and American war power now largely belongs to the president because Congress has failed to use its Constitutional war powers.
Power #3: Foreign Affairs. In contrast to domestic affairs, the president has broad power over America’s foreign affairs, including the right to make treaties and appoint ambassadors. To offset this power, the Constitution requires the Senate to ratify treaties and confirm ambassadors, thus preventing the president (in theory) from entering into treaties that are blatantly bad for America or nominating wholly unqualified ambassadors. More fundamentally, the president can’t exercise his foreign-affairs powers in violation of other Constitutional protections.
Power #4: Veto. The president has the right—and often uses it—to veto legislation, but the veto power can be overridden by 2/3 vote of Congress (giving Congress the last word here). Congress has used its “override” power more than 100 times.
Power #5: Appointment/Removal. The Constitution empowers the president to appoint many high officials including ambassadors, cabinet officials and justices of the Supreme Court. He also has the power to remove many executive branch officials. These powers to appoint and remove often translate into the power to influence those appointed. Nonetheless there are hundreds of examples of judges appointed by a president who then ruled against that same president (a recent example is the Trump financial records case discussed below). The president’s appointment power is limited by right of the Senate to confirm appointments. The Senate’s confirmation power checks the president in two ways. First, he usually avoids appointing people who have no chance of confirmation. Second, appointments sometime fail after the appointment has been made, either when the Senate votes, or before the vote when it becomes clear that confirmation is unlikely (such as the recently withdrawn Gaetz nomination to the post of Attorney General). The president can avoid senate confirmation by recess appointment, but this has grown rare in recent years as the Senate has found creative ways to stay in session (even if “in form only”) and avoid recess appointments. In very limited circumstances the president, under Article 2, Section 3 can also adjourn both houses of Congress and possibly make recess appointment during such adjournment, but this power is unused and untested (President-elect Trump recently mentioned this option).
Power #6 Pardon. The president’s pardon power—recently used by President Biden to pardon his son, Hunter—is unusually broad compared to other executive powers. The president is free to pardon people for federal crimes with very little restriction. But even the pardon power is limited in several key ways: it can’t be applied to future crimes, state law matters, civil matters, or impeachment proceedings.
Vesting Clause and Impeachment. The first sentence of Article 2 states “The executive Power shall be vested in a president of the United States of America.” Known as the vesting clause, this short but potent sentence vests all executive power in a single person—the president. There is much debate about whether the clause is an independent source of presidential power, beyond those powers listed above. Unlike those other powers, it does not identify any particular action—like veto or pardon or appointment that the president can take. Some argue that it simply confirms that entirety of the office of the president shall be held by one person, but it gives no further power. Others say that it creates a vast “unitary executive,” giving the president all of those powers—even those not set out in the Constitution—that are inherent in the executive of a sovereign nation. Regardless of how this debate is resolved, the Constitution checks and balances the “vesting” power. For example, four times Congress has exercised its right to impeach the president (two of those occurred during the first Trump term) and Congress has also impeached many lower officials. The threat of impeachment, which applies when federal officials commit “treason, bribery or other high crimes and misdemeanors,” remains an ever-present “check and balance” for the president and other federal officers.
Use and Abuse of Presidential Power – Real World Examples
Truman and Steel Mills. In the famous “Steel Seizure” case, the Court confirmed that the president has only those powers given him by the Constitution, which include the power to enforce federal law. Next, the court found that President Truman had exceeded his executive power when he seized steel mills during a threatened work stoppage, which he argued was necessary to support the military during the Korean War. Justice Jackson’s concurrence in that case remains today a key test for determining whether a president’s action is lawful. Under that test the president’s power is highest when aligned with an act of Congress and lowest when it contradicts such an act.
Nixon and Watergate Tapes. President Nixon refused to release the Watergate tapes, citing executive privilege. The Court disagreed and ordered Nixon to produce the tapes (Nixon resigned soon afterward).
Clinton and Jones. President Clinton wanted to stop Paula Jones’s sexual harassment lawsuit during his time in office, but the Court disagreed and said it could go forward so long as the suit accommodated the schedule and demands of the presidency.
Bush and Guantanamo. After 9/11, President Bush set up military tribunals and other procedures that provided few rights for prisoners held at Guantanamo. In several cases, the Court struck down parts of those procedures and ordered Bush to afford certain due process rights (include Habeas Corpus) to the Guantanamo detainees.
Obama and Search Warrants. President Obama claimed that no warrant was needed for the government to search cell phones after an arrest. In a sharp rebuke, the Court unanimously disagreed and held that the 4th Amendment warrant requirement applied with full force to cell phone searches.
Trump and Bank Records. President Trump sought to block a criminal subpoena that demanded production of his personal financial records. Trump argued that as a sitting president he had absolute immunity and did not need to comply with the subpoena. The court rejected Trump’s arguments and ordered that he must turn over the records. Several months later, more than a million pages of Trump’s financial records were released.
Conclusion
The Constitution creates a unique American president.
First, the American president has vast powers, but those powers are carefully defined and limited by the Constitution. If a particular power is not granted in the Constitution, the president does not have it.
Second, the courts are not shy in striking down actions by the president (or executive branch agencies or officials acting under his direction) that violate the Constitution or run contrary to laws passed by Congress.
Some say that we are in new age with President-elect Trump, and that the Constitutional guardrails may not hold. No one can predict the future, but we can look to the past. America has endured many profound crises during its 235 years under the Constitution—the burning of our Capital, the Civil War, Reconstruction, the Great Depression, two world wars, etc.—but throughout those times the president remained under the authority and control of the Constitution. While there are no guarantees, history suggests the Constitution and its guardrails will endure.
Published – Loudon Now -December 19, 2024
https://www.loudounnow.com/opinion/the-peoples-constitution-can-the-president-do-that/article_ab58d1c0- bd5b-11ef-aac5-ffc03de6101f.html
Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 25 years. He lives with his family and lots of animals on a farm near Hillsboro.
